Warrant Served on Facebook is Overbroad and Violates First and Fourth Amendments, ACLU Argues in Court Filing

March 8, 2017

BELLINGHAM, Wash. — The American Civil Liberties Union today filed a motion to quash a warrant issued to police to search a Facebook community page for a broad range of information about a local group engaged in protesting the Dakota Access Pipeline and advocating for environmental justice.

The warrant served on Facebook seeks private, sensitive information about people’s political views and opinions, images of political actions, and personal information, including locations. A hearing on the ACLU’s motion is scheduled for Tuesday morning in Whatcom County Superior Court.

The Bellingham #NODAPL Coalition’s Facebook page gives information and updates on protests of the $3.8 billion Dakota Access Pipeline, which is intended to carry North Dakota oil to Illinois.

“The warrant at issue here is deeply problematic and runs afoul of constitutional protections. Political speech and the freedom to engage in political activity without being subjected to undue government scrutiny are at the heart of the First Amendment,” said La Rond Baker, staff attorney at the ACLU of Washington. “Further, the Fourth Amendment prohibits the government from performing broad fishing expeditions into private affairs. And seizing information from Facebook accounts simply because they are associated with protests of the government violates these core constitutional principles.”

The Whatcom County Sheriff’s Department obtained a search warrant seeking not only private information about the NoDAPL group’s political activity as encapsulated on its Facebook page, but also data related to an unknown number of people who merely interacted with the group via Facebook at some point during the 12 days covered by the warrant — a timeframe that includes a NoDAPL protest of the Trump administration’s actions on the pipeline.

“Overbroad warrants such as this one have far-reaching implications,” said Brett Max Kaufman, an attorney with the ACLU’s Center for Democracy. “Government requests for information protected by the First Amendment must meet a high bar in order to ensure that political speech and advocacy are not chilled. The Constitution gives wide berth to that kind of civic participation, and law enforcement must respect that space in carrying out its activities.”

The First Amendment protects political speech, the right to receive information, and the right to associate with others to engage in political speech and advocacy without government monitoring or interference. When warrants target speech and activity protected by the First Amendment, the motion argues, courts must apply a heightened level of scrutiny in evaluating their legality. The ACLU challenged the warrant as an unlawful intrusion on all of these rights and asserts that upholding such a warrant would have a chilling effect on protected speech.

The ACLU’s motion argued tht the warrant also fails to meet the basic requirement under the Fourth Amendment that warrants be particularized, meaning that they must describe in detail items for which the government has probable cause to search. This requirement ensures government cannot rummage through someone’s personal effects. Further, when searches involve broad intrusions, such as searches of computers or online accounts like Facebook, the need for such limitations on warrants is especially great, courts have found.

The Standing Rock and Cheyenne River Sioux Tribes argue the pipeline threatens drinking water and cultural sites, and a broad-based coalition of opponents, NODAPL, have staged protests across the nation. The ACLU provided legal observers and supported the protesters in Standing Rock, who were the victims of excessive police force.